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Chinese Civil Procedure and the Conflict of Laws

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Author: Chen Weizhuo;
Language: English
Page: 180
Publication Date: 08/2011
ISBN: 7302261911,9787302261919
Details
The manuscript of the present textbook has been used for a course taught by the author for the LL.M. Program in Chinese Law at Tsinghua University School of Law from 2005 to 2010. The main objective of this course is to provide international students with basic knowledge of Chinese civil procedure and the conflict of laws. In particular, the course expounds civil lawsuits that are filed in accordance with the Chinese code of civil procedure (Civil Procedure Law of the People's Republic of China), other statutes and judicial interpretations, as well as choice of law rules determining the law applicable to civil relationships involving foreign elements. The course provides succinct explanations of essential issues, fundamental principles and particular institutions in Chinese civil procedure and the conflict of laws.The textbook begins with a survey of the Chinese procedural law and an overview of Chinese civil procedure and then focuses on essential aspects of court jurisdiction and trial procedure in civil matters. In view of the traditional importance of alternative dispute resolution in China, mediation (conciliation) and arbitration are also discussed with corresponding comparisons to civil procedure.The textbook also discusses issues relating to the conflict of laws, i.e. international jurisdiction under the Chinese international civil procedure law, recognition and enforcement of foreign judgments as well as Chinese choice of law rules. Focus is directed toward the Chinese Statute on the Application of Laws to Civil Relationships Involving Foreign Elements of 28 October 2010, which entered into force on 1 April 2011.Two appendixes are printed at the end of the textbook: "Addendtrm 1: Chinese Statutory Conflict Rules and Conflict Rules Contained in Judicial Interpretations Prior to 1 April 2011" and "Addendum 2: Statute on the Application of Laws to Civil Relationships Involving Foreign Elements of the People's Republic of China" which has been translated into English jointly by Professr CHEN Weizuo and Mr. Kevin M. Moore.

About Author
CHEN Weizuo, Director of the Research Centre for Private International Law and Comparative Law, Tsinghua University School of Law, Beijing, China; Doctor of Laws, Wuhan University, China; LL.M. and doctor iuris, Universitait des Saarlandes,Germany; professeur invite a la Faculte internationale de droit compare de Strasbourg,France (since 2003); professeur invite l'Universit6 de Strasbourg, France (2005-2010); to teach a special course in Frenc.
Table of Contents
Part 1 Chinese Civil Procedure
Chapter One A General Survey of Chinese Procedural Law
1. SUBSTANTIVE AND PROCEDURAL LAW
2. DIFFERENT TYPES OF PROCEDURAL LAW
3. JUDICIAL SYSTEM OF THE PRC
Chapter Two An Overview of Chinese Civil Procedure
1. SOURCES OF CHINESE CIVIL PROCEDURAL LAW
2. BASIC PRINCIPLES OF CHINESE CIVIL PROCEDURE
3. BASIC SYSTEMS OF CHINESE CIVIL PROCEDURE
Chapter Three Court Competence and Court Jurisdiction in Civil Matters
1. COURT COMPETENCE IN CIVIL MATTERS AND ITS
RELATIONSHIP TO MEDIATION AND ARBITRATION
2. COURT JURISDICTION
Chapter Four Litigation Participants
1. PARTIES
2. AGENTS AD LITEM
Chapter Five Evidence
1. GENERAL PRINCIPLES
2. BURDEN OF PROOF AND THE COURT'S RIGHT TO INVESTIGATE AND COLLECT EVIDENCE
3. ORIGINALITY OF EVIDENCE (ARTICLE 68 OF THE CPL)
4. EXPERT EVALUATION (ARTICLE 72 OF THE CPL)
5. INSPECTION (ARTICLE 73 OF THE CPL)
6. PRESERVATION OF THE EVIDENCE (ARTICLE 74 OF THE CPL)
Chapter Six Time Periods and Service
1. TIME PERIODS
2. SERVICE
Chapter Seven Property Preservation and Advance Execution
1. PROPERTY PRESERVATION
2. ADVANCE EXECUTION
3. RECONSIDERATION
Chapter Eight Compulsory Measures against Obstruction of Civil Proceedings
1. ACTS OF OBSTRUCTION OF CIVIL PROCEEDINGS AND COMPULSORY MEASURES AGAINST THEM
2. COMPULSORY MEASURES (DETAILS)
Chapter Nine Litigation Costs
1. MAIN PROVISION OF THE CPL ON LITIGATION COSTS
2. MEASURES FOR PAYMENT OF LITIGATION COSTS
Chapter Ten Ordinary Procedure of First Instance
1. BRINGING A LAWSUIT AND ENTERTAINING A CASE
2. PREPARATION FOR TRIAL
3. TRIAL IN COURT
4. SUSPENSION AND TERMINATION OF LEGAL PROCEEDINGS
5. JUDGMENT AND ORDER
Chapter Eleven Summary Procedure
1. SCOPE OF APPLICATION
2. PARTIES IN A SUMMARY PROCEDURE
3. OTHER FEATURES
Chapter Twelve Procedure of Second Instance
1. CONDITIONS AND TIME LIMITS FOR AN APPEAL
……
Part 2 The Conflict of Laws
Sample Pages Preview


B damaged a Sony video projector borrowed from A. A requested compensation of 10,000 yuan RMB from B, but B refused to do so. A sued B in a people's court. The court tried many times to conciliate the dispute between the two parties. A maintained his claim of 10,000 yuan RMB because the original product was available only in Japan whereas B only wanted to compensate 6,000 yuan RMB at most, arguing that the product was already 2 years old. After several months B expressly declared to the court that he did not want to continue the mediation. The court thought that the two parties had been close friends and the object of dispute was not big. It maintained the mediation and postponed the judgment. After another four months, the plaintiffA protested to the court and requested a prompt judgment. The trial judge said to him, "It's quite easy for me to render a judgment, but it will be disadvantageous to you, for you might be compensated merely 5,000 yuan RMB." Question: was that reasonable?
Answer: in the instant case, the court conducted mediation on an involuntary basis. It was wrong to do so, because any mediation conducted by a people's court shall be on the voluntary basis (Article 9 of the CPL).
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